1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.58068 OF 2017(GM-FC) BETWEEN :
Mr.Vikram B.D. S/o.Mr.B.N.Devaraj, Aged about 39 years, R/at Thotaddagadde Estate, Anemahal Post, Sakleshpur – 573 134. ... Petitioner (By Sri K.B.S.Manian, Advocate for Sri N.Krishna Murthy, Advocate) AND:
1. Mrs.Swathi Vikram, W/o.Vikram B.D. Aged about 28 years, R/at: No.86, Peace Heaven 2, S.V.Road, Sarvabhouma Nagar, Bangalore – 560 076.
2. Mrs.Naina Sequeria, Major, Headmistress of Primary High School Amber Valley Residential School Chikmagalur – 577 133. …Respondents (By Sri H.Manjunath, Advocate for C/R1: Notice to R2 dispensed with) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records in G and W.C.8/2017 pending before the Principal Judge, Family Court, Chikmagalur and set aside and quash the order dated 16.12.2017 in G & W.C.No.8/2017 vide Annexure-S passed by the Principal Judge, Family Court, Chickmagalur.
This writ petition, coming on for preliminary hearing, this day, the Court made the following:
ORDER It is an unfortunate case where a young mother and father fighting for egos, ultimately the minor son of 6 years old, who is present before the Court is a scapegoat of egoistic attitude of the parents.
2. The present writ petition is filed by the petitioner- father against the order dated 16.12.2017 on I.A.No.5 made in G & WC No.8/2017 allowing the application filed by the mother in part holding that the mother is entitled to have the interim custody of her minor son, Master Ryan from 3.00 p.m. of 17.12.2017 till 7.00 a.m. of 18.12.2017. Further, it is ordered that she is entitled to interim custody of her son during winter vacation from 22.12.2017 at 12.00 noon till 3.00 p.m. on 27.12.2017.
3. The first respondent, who is the petitioner in G.& W.C.No.8/2017 filed the petition under Sections 6, 7, 8, 9 and 25 of the G. & W.C. Act to direct the respondent to handover the permanent custody of the minor ward Master Ryan, aged 6 years, son of the petitioner and appoint the petitioner as the guardian of her minor son and also filed application under Sections 6, 7 and 12 of the G.& W.C. Act r/w. Section 10 of the Family Courts Act to direct the respondents to facilitate interim custody of her minor son from 4.00 p.m. on 8.12.2017 to 3.00 p.m. on 10.12.2017, from 4.00 p.m. on 15.12.2017 to 3.00 p.m.
17.12.2017 and from 1.30 p.m. on 23.12.2017 to 3.00 p.m. on 28.12.2017, reiterating the averments made in the main petition.
4. The said application came to be opposed by the present petitioner who was respondent before the Family Court stating that the application filed is frivolous, vexatious, contained malafide object with illegal motive and respondent has not approached the Court for bonafide reasons and she is guilty of misuse and abuse of the due process of law and she is guilty of suppression of various facts, therefore sought for dismissal of the application.
5. The Family Court, on considering the application and objections, by the impugned order dated 16.12.2017, allowed the application in part and granted the interim custody of the minor son to the mother from 3.00 p.m. of 17.12.2017 till 7.00 a.m. of 18.12.2017 and from 22.12.2017 at 12.00 noon till 3.00 p.m. on 27.12.2017. Hence, the present writ petition is filed by the father of the minor child.
6. I have heard the learned counsel for the parties to the lis.
7. Sri.K.B.S.Maniyan, learned counsel for the petitioner contended that impugned order passed by the Family Court granting interim custody is erroneous and contrary to the material on record. He would further contend that before passing the impugned order, the learned Judge has not followed the procedure as contemplated under Section 17(3) of the Guardianship and Wards Act, 1890 (‘the Act’ for short). Therefore, the impugned order cannot be sustained. He would further contend that while granting interim custody upto six years, father is natural custodian and guardian and he is entitled for the interim custody and not the mother. Therefore, he sought to quash the impugned order by allowing the present writ petition.
8. Per contra, Sri.Manjunath, learned counsel appearing for mother sought to justify the impugned order and contended, the very writ petition filed by the petitioner against the interim order is nothing but disrespecting the child and therefore sought for dismissal of the writ petition.
9. The matter was posted on 19.12.2017. Taking into consideration the sensitiveness of the case since the minor’s interest is involved, this Court invited both the mother, father and the parents of the mother to the Chamber along with their respective counsel and spent quite sometime, i.e., from 2.00 p.m to 3.00 p.m. the Court has made all efforts to persuade the parents to come to an amicable settlement ignoring their personal egos in the interest of child, but failed because of their egoistic attitude and therefore there was no option except this Court direct the father to keep the child present before this Court today. Accordingly, today the child was invited to the Chamber with all love and affection and also offered biscuit and badam milk. The child was so intelligent and he was responsive and particularly when wishes were sought from him, he wrote in his own hand writing that he loves his father more than mother and when this Court stated that his age is 7 years, he immediately reacted that he is only 6 years old and he wrote on white paper his name as Ryan and that he loves Vikram daddy.
10. In the open Court, in the presence of respective counsel and in the presence of both mother and father, when enquiry was made taking the child near the Dias and asked with whom he would like to stay with, he submits that he likes to live with his father than mother.
11. The Trial Court, while granting interim custody, has not followed the procedure as contemplated under Section 17(3) of G & WC Act. The paramount interest of a minor is more important rather than egoistic attitude of the parents. Both the father and the mother have no concern with the child and they have no social concern to the Society. Because of the attitude of the parents now the child is studying in residential school, at the expenses of father. The efforts made by this Court to resolve the dispute went in vain.
12. It is unfortunate that because of the egoistic attitude between the parents, now the child is suffering with great pains. Although this Court feels that the child should not have been invited to the Court in front of galaxy of lawyers, but inevitably the Court had to invite the child as per the mandatory provisions under Section 17(3) of the Guardian and Wards Act, 1890. Admittedly, the child has joined the Amber Valley Residential School at Chikkamagaluru District. The object and purpose of the Guardian and Wards Act, 1890 is not merely physical custody of the minor, but due protection of the rights of wards’ health, maintenance and education. The power and duty of the Court under the Act is the ‘welfare of the minors’. The children are not mere chattels, nor are they mere play things for their parents.
13. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care for the welfare of their children, if they do not happen to be unsuitable as guardians. The man or woman in their social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for him/her company with some justification, but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Many people have shortcomings, but that does not imply that it is not deserved of the solace and custody of the children.
14. The parents should act to the best interest of the child which means the basis for any decision taken regarding the child, to ensure fulfillment of basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, in a considerate and in the best interest of the child. Unfortunately, in the present case, it is not forthcoming from the parents. Because of their egoistic attitude, the child has become orphan and is studying in a Residential School and they are playing with the life of the child which is impermissible. The parents do not know the love and affection, but the child has love and affection towards father rather than mother without knowing the inner attitude in the hearts of the parents.
15. The life consists of reaction, resound and reflection. They would get back exactly what they are doing to their son. What is the use of their education, when it does not help them to change their destiny. When the bad thoughts enter their mind, their education and intelligence become futile and meaningless. It is the time for the parents to rectify their mistakes and to take care of their child and it is their moral obligation to maintain their son. The provisions of the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 make it manifestly clear that the paramount consideration is the welfare of the minor child and not statutory rights of the parents. The problem has to be solved rather with a human touch. In selecting a guardian, the Court exercises parens patriae jurisdiction. It must give due weightage to children’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, as well as physical comfort and moral values – Court must ascertain children’s wishes and a child is not a property or commodity. Such issues should be handled with love, affection, sentiments and applying human touch to the problem. That has not been done in the present case before passing the impugned order by the family Court.
16. It is well recognised that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognised in many international covenants, which are adopted in this country as well. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the children, who are the future of the nation. A proper education encompassing skill development, recreation and cultural activities has a positive impact on the child. The children are the most important human resources whose development has a direct impact on the development of the nation for the child of today with suitable health, sound education and constructive environment is the productive key member of the society. The present of the child links to the future of the nation, and while the children are the treasures of their parents, they are the assets who will be responsible for governing the nation. The tools of education, environment, skill and health shape the child thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public and contributing to economic progression. The growth and advancement of the child with the personal interest is accompanied by a significant public interest, which arises because of the crucial role they play in nation building.
17. The Psychologists term originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis referred 'The Parental Alienation Syndrome'. It has at least two psychological destructive effects: First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts. Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.
18. Empirical studies show that mother infant “bonding” begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she “must continue to be so for some years to come.”
19. Taking into consideration the surrounding circumstances, the Family Court was not justified in unilaterally granting the custody to the mother without following the mandatory provisions of Section 17(3) of G & W. Act. In order to ascertain the wishes as already stated above, the child was invited and the child expresses the wish to join the father rather than the mother.
20. Taking into consideration the fact that the child born out of wedlock between the petitioner and respondent no.1, who are suffering from egoistic attitude, it is high- time for the parents to change their attitude and sacrifice for their child who is the future of this country.
21. As stated by learned counsel for the parties, Winter Vacation starts from 22.12.2017 till 03.01.2018. The interim custody granted by the Family Court from 17.12.2017 to 18.12.2017 has spent itself.
22. Taking into consideration the entire circumstances, knowing the mind-set of the child, without depriving love and affection of both the mother and father, this Court is of the considered opinion that the child be given interim custody of the mother along with the grandmother namely Jayalakshmi, whose presence is required during the tenure of stay with the mother at No.86, Peace Heaven 2, S.V.Road, Sarvabhouma Nagar, Bangalore – 560076 from 22.12.2017 at 12.00 noon till 25.12.2017 at 4.00 p.m. Thereafter, the mother shall handover the child with love and affection to the father and father shall take care of the child from 25.12.2017 till 03.01.2018 and he shall drop the child at the Residential School on 03.01.2018, without disturbing the educational activities.
23. This Court hope and trust, taking into consideration that both the father and mother are educated, they should not influence the child in any way to harm the mind of the young boy and they should not disclose the rift between father and mother to the child at any cost.
24. In view of the above, the impugned order passed by the Family Court is modified to that extent and accordingly, the Writ petition is disposed of.
Sd/- JUDGE Cm/-